SZLUS v Minister for Immigration - [2008] FMCA 387

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 387

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant making a sur place claim based on religion in relation to China – applicant not believed – alleged unfairness in the Tribunal hearing due to interpretation errors and interruptions by the presiding member – alleged bias on the part of the presiding member.

Migration Act 1958 (Cth), ss.91R, 425

WALN v Minister for Immigration [2006] FCAFC 131

Applicant:

SZLUS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3937 of 2007

Judgment of:

Driver FM

Hearing dates:

27 March, 7 April 2008

Delivered at:

Sydney

Delivered on:

30 April 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms K Morgan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3937 of 2007

SZLUS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 29 November 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. The background to the applicant’s claims and the Tribunal’s decision on them is set out below. I have modified the statement of background in paragraphs 2 to 19 of the Minister’s written submissions filed on 20 March 2008 in order to protect the identity of the applicant. The applicant asked the Court not to publish its reasons on the internet. I declined that request on the basis that public confidence in court decisions requires open justice. Ordinarily, that means that hearings are open to the public and that the court’s written reasons are published. However, I have deleted references to the nature of the applicant’s employment in order to seek to protect his identity, beyond the usual use of an alias.
The applicant is a citizen of the Peoples’ Republic of China (the PRC) and arrived in Australia on 16 May 2007.[1]
[1] Relevant documents (RD) at 15
On 13 June 2007 the Department of Immigration and Citizenship (the Department) received an application for a protection visa from the applicant.[2] On 16 July 2007 a delegate of the respondent Minister refused to grant the applicant a protection visa.[3]
[2] RD 1-43
[3] RD 46-59
On 9 August 2007 the Tribunal received an application for review of the delegate’s decision.[4] On 11 September 2007 the Tribunal invited the applicant to a hearing to be held on 9 October 2007.[5] On 27 September 2007 the Tribunal received a response to hearing invitation from the applicant accepting the invitation to attend the hearing and requesting a Mandarin interpreter (“who has Australian citizenship”).[6] On 3 October 2007 the Tribunal received a request to defer the hearing from the applicant’s advisor nominated in his application for review.[7] The Tribunal changed the hearing date for the applicant’s hearing to 18 October 2007 and sent him a letter to that effect.[8] The applicant’s advisor forwarded to the Tribunal on 12 October 2007 an email received from the applicant.[9]
[4]RD 60-64
[5] RD 66-67
[6] RD 68
[7] RD 69
[8] RD 70-71
[9] RD 72-73
The Tribunal hearing was held on 18 October 2007 and the applicant attended and gave evidence using a Mandarin interpreter. The applicant also produced his passport, other documents, material from the internet and his own statement in support of his application.[10]
[10] RD 76-85
After the hearing the Tribunal also received a facsimile from the applicant’s advisor annexing another copy of a reference provided by the applicant at the time of the Tribunal hearing.[11] The Tribunal also received a further statement from the applicant on 1 November 2007.[12]
[11] RD 86-87
[12] RD 88

The applicant’s claims

To the Department the applicant claimed to have a well founded fear of persecution on the basis of his religion as a public sector employee who believed in God[13]. He claimed that he would be arrested and tortured and forced to make a confession as to whether he betrayed any secret information.[14]
[13]RD 21
[14]RD 21
In his statement to the Tribunal[15] he said that he had expressed his indignation about the Chinese government’s oppression of religious freedoms and that he sympathised with Falun Gong practitioners. He also claimed that he exposed how Chinese government officials were dealing with Falun Gong practitioners and that would be taken as serious action against the Communist Party. He claimed he would be charged with disclosing State secrets and damaging State security.[16]
[15] RD 80-83
[16] RD 81

The Tribunal’s decision

The Tribunal set out the relevant legislative requirements and then summarised the applicant’s claims, oral evidence and documentary material provided to the Tribunal in some detail.[17]
[17] RD 97.5-104.2
The Tribunal accepted that the applicant was a national of the PRC and accepted that he had worked for about the last 14 years in the field of employment he claimed.[18]
[18] RD 104
In relation to his claim that he would be targeted on his return for his actions while employed, the Tribunal accepted the following matters:
a)that the applicant would have been specially trained and expected to perform his duties;[19]
b)that any failure on the part of the applicant to perform his duties or resistance on his part to doing so would be seen by his employers as a dereliction of the duties to which he had voluntarily subscribed and for which he had voluntarily sought training;[20]
c)that if found to be in dereliction of his duties in this way the applicant might be interrogated and prosecuted and gaoled and that at some points on the way he might be treated to some extent in a heavy-handedly or in an authoritarian way;[21] and
d)that gaol conditions would be very harsh.
[19] RD 104.5
[20] RD 104.6
[21] RD 104.7
The Tribunal was not satisfied, however, that the State’s response to such failure identified in the paragraph above could reasonably be regarded as a Convention-related matter.[22]
[22] RD 104.7
In relation to the applicant’s claims as to his responses to peaceful Falun Gong adherents, the Tribunal accepted that the applicant might easily have been suspected by the State of being a Falun Gong sympathiser if he was suspected by the State of “going soft” on Falun Gong practitioners.[23] The Tribunal, however, on the facts before it, found that the chance of the applicant finding himself in the situation of having to decide what to do with a person he suspected of being a Falun Gong practitioner is remote and the chance of the applicant himself being suspected of being a Falun Gong sympathiser is even more remote.[24] The Tribunal concluded, therefore, that the chance of the State reacting to the applicant as it would a suspected Falun Gong sympathiser is remote and there is not a real chance that the authorities in the PRC would suspect him of being a Falun Gong sympathiser and, therefore, there is not a real chance of his facing persecution for reasons of being imputed to being a Falun Gong sympathiser.[25]
[23] RD 104.10-105.1
[24] RD 105.4
[25] RD 105.5
In relation to his claims that he would be persecuted for speaking out in Australia about certain activities in the PRC, the Tribunal did not accept that the applicant had spoken out to anyone in Australia about being obliged to enforce the ban on Falun Gong in the course of his work or about any distaste in having to do so based on a rejection of the applicant’s evidence.[26] The Tribunal also found that his claim about having revealed “State secrets” was, on the evidence provided, “exaggerated and fanciful”.[27]
[26] RD 105.5-105.8
[27] RD 105.10
In relation to the applicant’s claims to being persecuted for his religion the Tribunal did not accept that the applicant had any sincere attraction to Christianity or his claims about his Christian religious convictions because it did not “accept him generally as a credible witness in the present matter”.[28]
[28] RD 106.10-107.1
In relation to the applicant’s claim that he has been summoned home and had not returned, the Tribunal was not satisfied that the applicant has been recalled and, therefore, was not satisfied that there was any factual basis for finding that the applicant would at the time of its decision or in the reasonable foreseeable future be regarded by his superiors as “absent without leave”.[29]
[29] RD 107.4
The Tribunal accepted that the applicant’s non-completion of the course he was studying in Australia may be an issue of concern for his employers but was not satisfied on the evidence before it that this was a Convention-related matter.
The Tribunal concluded that the applicant was an unreliable witness in the present matter.[30] The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in the PRC and was not satisfied that the applicant’s claimed fear of persecution in the PRC was well founded.[31]
[30] RD 107.8
[31] RD 107.8

The judicial review application

These proceedings began with a show cause application filed on 21 December 2007. The applicant now relies upon an amended application filed on 20 March 2008. There are two grounds to the application:
a)the interpreter, at the hearing conducted by the Tribunal, made mistakes which, combined with interruptions by the presiding member meant that the applicant’s words were “completely misunderstood”;
b)the Tribunal cannot be said to have given proper, genuine and realistic consideration in its decision to the review application.
The applicant provides extensive particulars in support of these two grounds. In relation to ground 1, the applicant refers to three parts of the Tribunal’s decision which, in his view, were affected by inadequate interpretation and/or interruptions by the presiding member. In relation to ground 2, the applicant’s particulars are in the nature of submissions but the applicant’s attack on the Tribunal’s reasoning amounts to an allegation of bias.

The evidence

I received the book of relevant documents filed on 13 February 2008 as evidence of the Tribunal decision, its process and the material the Tribunal had before it. I also received the affidavit of Cathy Yong Xie made on 29 February 2008. I accepted Ms Xie as an expert witness in relation to the issues of interpretation raised by the applicant. I also received the affidavit of Naomi April Tondl made on 29 February 2008 which annexes an Auscript transcript of the Tribunal hearing.
Ms Xie was cross-examined at length by the applicant on her affidavit. She resisted attacks on her credibility but conceded that there were examples of the presiding member interrupting both the applicant and the interpreter (while the interpreter was translating what the applicant said). Ms Xie also conceded several errors in interpretation by the interpreter at the Tribunal hearing but maintained that the general standard of interpretation was good. Ms Xie also gave evidence that the applicant himself interrupted the presiding member on a number of occasions and spoke for a substantial part of the hearing in English, without the assistance of the interpreter.
I received as an exhibit part of a statement by Nigel Statham BA, PhD. BTh. The applicant had sought to tender the statement by Mr Statham which in large part bore only upon his protection visa claims. However, I accepted as evidence the following statement:
I would like to add, as a linguist-translator working in 6 different languages and a teacher of English, that I have found [the applicant] to … have quickly gained an advanced knowledge of English, which speaks to me of a concerted and conscientious effort to relate and adapt to Australian life. Notwithstanding this, his knowledge of English vocabulary is still rather limited in some areas where it might be expected to be more extensive, and this causes him some difficulty in understanding other English speakers, especially when they speak quickly. I do know that he only studied advanced English for one year at university in China after high school, and only in the special area of … studies.
The applicant also sought to introduce as evidence his own opinion as to errors in interpretation at the Tribunal hearing. I declined to receive that opinion as evidence on the basis that the applicant is not an expert in the English language. I did, however, accept the applicant’s opinion as a submission.

Submissions

The applicant submits that the Tribunal made an adverse credibility finding against him which was influenced by errors in interpretation and interruptions by the presiding member which prevented the applicant from saying what he wished to say. The applicant further submits that the Tribunal’s finding that he did not leave China for Convention related reasons was based upon a complete misunderstanding of his evidence brought about by errors in interpretation and interruptions by the presiding member. The Tribunal further found that the applicant had no genuine commitment to the Christian religion. The applicant contends that that finding was also affected by interpretation errors and interruptions which prevented him from being understood and completing what he wanted to say.
In relation to the second ground, the applicant asserts that the presiding member demonstrated pre-judgement. In particular, the applicant asserts that the presiding member jumped to conclusions in relation to the applicant’s evidence without giving him a proper opportunity to give that evidence and without the presiding member properly understanding that evidence. The applicant asserts that the presiding member, in his reasons, demonstrated that he had already made up his mind about the applicant’s claims regardless of the applicant’s evidence and had sought to use that evidence to justify a pre-determined outcome.
The Minister’s submissions were directed towards the single ground in the original show cause application. However, that ground was the same as the first ground in the amended application, with the benefit of detailed particulars. Relevantly, those submissions are:
This is, in effect, a claim that s 425 of the Migration Act 1958 (Cth) was breached. A precondition of the Tribunal’s exercise of jurisdiction is compliance with s 425.
Section 425(1) provides that: “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at 560-561 (citations omitted, emphasis added), the Full Court said:
[33]Pursuant to s 425 of the Act the tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture.
…
[35]Section 425 is not a code setting out all of the requirements for a fair hearing by the tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the tribunal. (emphasis retained)
[36]It is clear that s 425 of the Act does not require that the tribunal actively assist the applicant in putting his or her case; nor does it require the tribunal to carry out an inquiry in order to identify what that case might be.
[37]On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the tribunal. The statutory obligation upon the tribunal to provide a "real and meaningful" invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health. They also include circumstances where the statements made by the tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the tribunal. They also include circumstances where the fact or event resulting in unfairness was not realised by the tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate.
The applicant … alleges that the Tribunal member interrupted him and the interpreter was mistaken at some parts of the hearing …. In relation to the claims that the interpretation provided was insufficient, it is necessary for the applicant to establish either[32]:
(a)that the applicant was thereby effectively prevented from giving evidence; or
(b)whether errors made by the interpreter were material to adverse findings made by the Tribunal.
The respondent Minister submits that the evidence before this Court establishes that there was a hearing in compliance with s 425: see the transcript of the hearing (annexure to the affidavit of Ms Naomi Tondl affirmed 29 February 2008) and the affidavit of Cathy Yong Xie sworn 29 February 2008.
The transcript reveals that the applicant participated directly in the hearing (see pages 3-6, 8, 10, 12, 19) as well as through the interpreter. The transcript does not indicate there were any issues with the interpretation nor does it indicate that the hearing was conducted in a manner that the Court could conclude that it was not a fair hearing. The Tribunal’s records indicate the interpreter was a NAATI level 3 interpreter.[33]
In addition, the affidavit of Ms Xie is to the effect that she has listened to the recording and read the transcript of the recording. She concludes that the standard of interpretation was good. She also notes that the applicant responded to the Tribunal’s questions in English without the need for interpretation and that from time-to-time the applicant interrupted the Tribunal and the interpreter. She also observes that the Tribunal did interrupt the flow of conversation but her opinion is that this did not prevent the full exchange of information. Thus, the evidence reveals that the applicant was not prevented from giving evidence and there were no errors made by the interpreter (let alone errors which were material to adverse findings made by the Tribunal).
The respondent Minister submits that the evidence before the Court establishes that the applicant was not effectively precluded from taking part in the hearing either on the basis of the Tribunal’s conduct in the hearing or on the basis of deficient interpretation. Section 425 was complied with and no jurisdictional error has been identified.
[32] Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17]-[18]; see also Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [45]; Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788 at [31].
[33] RD 74

In oral submissions, counsel for the Minister submitted that the evidence of Ms Xie should be accepted. Her affidavit is general but the transcript was analysed minutely during the course of her cross‑examination. She made appropriate admissions and demonstrated no bias in giving her evidence. Counsel submitted that the identified errors in interpretation were not material to the outcome. Further, counsel submits that there were no interruptions by the presiding member that should be taken as rendering the hearing unfair. In relation to the applicant’s knowledge of Christianity, the Minister submits that it should be accepted that the member only began speaking after a significant pause by the applicant. Counsel submitted that the allegation of bias should be rejected. Counsel submitted that the portion of the transcript relied upon by the applicant related to a consideration of the application of s.91R(3) which was ultimately not relied upon in the Tribunal decision so those passages were not material to the outcome.
In reply, the applicant re-submitted the essential elements of his grounds of review and said that he felt like a “deaf mute” during the course of the Tribunal hearing. He sought the opportunity to seek further expert evidence on the alleged mistranslations. I rejected that request on the basis that I had extended the opportunity to the applicant to introduce evidence by way of affidavit prior to the trial of this matter and he had not taken that opportunity.

Reasoning

There are two questions to answer in relation to the asserted interpretation problems in ground 1. The first is whether the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence. The second question is whether there were errors in translation which were so material as to cause the decision making process to miscarry[34].
[34] WALN v Minister for Immigration [2006] FCAFC 131 at [29]
As to the first question, the applicant is quite fluent in conversational English although he is by no means an expert. I accept the evidence of Mr Statham concerning the applicant’s English language ability. The applicant chose to speak in English at times at the Tribunal hearing, although he had the assistance of a Mandarin interpreter. The applicant told the presiding member at the beginning of the hearing that he did not require the assistance of the interpreter[35], although the interpreter remained and did interpret some of the applicant’s answers in the Chinese language. The transcript of that hearing is 22 pages long. For the first 11 pages of the transcript, the applicant responded to all or most questions in English. On page 12 of the transcript he responded partly in English and partly in Chinese. On pages 13 and 14 of the transcript he responded to all questions in Chinese. On pages 15 to 18 he responded mostly in Chinese. On pages 19 to 22 the applicant resumed answering most questions in English. I conclude from this that the applicant generally understood what the presiding member was saying without the assistance of the interpreter and that, except where he needed to provide a long and complex response, he was able to converse freely in English. I accept the opinion of Ms Xie, who had the opportunity to listen to the hearing tape, that the standard of interpretation was good. Although Ms Xie identified or conceded several errors in translation, including the transposition of “Australia” and “China” on one occasion, these were not material to the outcome. I accept that the standard was good enough for the applicant to understand the questions put to him and for his answers to be correctly represented to the presiding member. I find that the standard of interpretation at the hearing was adequate and that the applicant was not prevented from giving his evidence.
[35] T3, line 4
As to the second question, the applicant relies upon three parts of the Tribunal reasons and parts of the transcript to support his contention that material findings of the Tribunal were affected by poor translation or interruptions so as to cause the decision making process to miscarry.
The first example is an adverse credibility finding. The Tribunal said[36]:
The Tribunal also finds that, given his overall description of his duties and skills, the Applicant made a fanciful and implausible distinction as to what would give rise to a moral dilemma for him …, particularly when he suggested he would not like to have to act against persons who propagated banned propaganda, or who committed or attempted suicide or who tried to inflict self-injury …. The Tribunal found the Applicant unconvincing.
[36] RD 105
The applicant contends that he was unable to explain to the presiding member, because of poor interpretation and an interruption by the presiding member that he was not saying that he would not act against Falun Gong practitioners peacefully proselytising or trying to inflict injuries upon themselves. The applicant contends that he attempted to explain that he would definitely stop such activities. Ms Xie conceded, and the transcript confirms[37], that the interpreter did not complete a sentence by the applicant relating to how he would act against Falun Gong practitioners attempting suicide or distributing pamphlets. The interpreter said:
If this Falun Gong practitioners or cult members they try to endanger other people’s lives, of course I will try to stop them. However, if they distribute just propaganda pamphlets or they suicide – they committed suicide or burned themselves … - - -
[37] T14 at line 19
Ms Xie conceded that the applicant could be heard saying additional words although the words could not be heard clearly. The applicant contends that he was saying something to the effect “I need to stop them, I should say...”. Ms Xie conceded that the applicant could be heard on the sound recording saying “I need to stop them” but the interpreter was interrupted by the presiding member before these words were translated into English. The applicant also contends that other aspects of emphasis were lost affecting his evidence that he would certainly stop Falun Gong practitioners attempting to commit suicide or proselytising. Even if this contention was correct, however, the only effect on the presiding member’s understanding of the applicant’s evidence that the alleged further statement could have made, would be to prevent the presiding member concluding that the applicant was attempting to draw a distinction as to the circumstances when he would or would not face a moral dilemma. The applicant now seeks to characterise his evidence to the Tribunal as being that he would always do his duty without hesitation. If that evidence had been given in those terms then the presiding member would have been bound to conclude that the applicant would not face a moral dilemma as he had claimed. In other words, the outcome would have been the same. The Tribunal would not have accepted that the applicant faced a moral dilemma and that he spoke out in Australia because of that.
Further, the presiding member said[38] that it appeared that the applicant would have no hesitation but to stop practitioners attempting suicide, to which the applicant agreed. The presiding member then went on to discuss the circumstances of Falun Gong practitioners distributing information. The applicant conceded that he had never seen Falun Gong practitioners proselytising in the conduct of his duties. The presiding member concluded that the chance of such a situation arising was slight so that, whether or not the applicant would have a troubled conscience, the situation was unlikely to arise.
[38] T14, line 23
The next part of the Tribunal’s reasons relied upon by the applicant appears at RD 107. The Tribunal said:
The evidence of the Applicant’s genuine interest in and application of himself to the topic of his studies generally undermines his claim about choosing the “study in Australia” option as a means of escaping the PRC for Convention-related reasons. On the Applicant’s oral evidence, the Tribunal does not accept that he came here to escape Convention-related persecution.
The applicant now contends that he was misunderstood and that he was not seeking to escape from China at all. On page 18 of the transcript the presiding member is recorded as asking:
But I have to ask myself – the Migration Act requires me to consider whether you talked to people in Australia and presented evidence of talking to them, simply as a way of creating a refugee case. And I do have a concern about it because talking about it, or complaining about it, seems out of character of your practice of doing the job and pursuing studies that make you better at the job.
The interpreter is recorded as responding:
How can I put it. One reason for me to come here to study is to seek some kind of escape. It is not necessary for me to become a refugee in Australia because then I had a good job back in China, and I can have a good life because of that job.
The applicant contends that the word “escape” was mistranslated. Ms Xie gave evidence that the word was accurately translated. I accept her evidence. Although the applicant’s evidence was equivocal, he was seeking to give the impression that his decision to come here to study was in part motivated by a desire to “escape” China. The Tribunal finding that the applicant did not come to Australia to escape Convention related persecution was open to it on the evidence before it and the finding was not affected by inadequate translation. On my reading, the applicant’s evidence as a whole could not support any finding that he fled persecution in China and, indeed, the applicant now supports that conclusion. The applicant asserts that he was interrupted by the presiding member and so prevented from clarifying his evidence, but even accepting that several interruptions occurred, if the applicant had given the evidence he now contends he wished to, he could only have reinforced the conclusion reached by the Tribunal.
The third passage of the Tribunal reasons relied upon by the applicant appears at RD 107. The Tribunal said:
The Tribunal finds that it is reasonable to expect that a person who attended a course of religious instruction out of a sincere interest in potentially embracing the religion under discussion would have something more to say about what the religion itself says and means to him in its own terms. Given what little the Applicant had to say after having attended the religious course, the Tribunal finds that he is not sincere about being or becoming a Christian. For reasons similar to those already given in respect of the Falun Gong issue, the Tribunal does not accept that the Applicant’s involvement with Christianity in Austrlia has come to the attention of, or become a relevant issue with, his superiors…
The applicant contends that in relation to this question he was interrupted twice by the presiding member and that, if he had not been interrupted, he would have given additional evidence about his need for more time to learn about Christianity and to explain how he got to know Christianity and being involved in it. The applicant relies upon pages 19 and 20 of the transcript. It is apparent from those parts of the transcript that the presiding member was interrupted several times by the applicant. At T19, line 36 the applicant responded to the question, “Are you baptised a Christian?”, with the words, “No, not yet”. Ms Xie conceded that the applicant said the words, “I need…”. However, Ms Xie emphasised that after saying the words, “I need”, (which were not interpreted) the applicant paused for a considerable period and it was only after that pause that the presiding member spoke again.
The applicant contends that, at line 45 of the transcript on page 19 he also said the words “So I” and was interrupted by the presiding member again. This was in the course of answering the presiding member’s question of what the appeal of Christianity was to him. Ms Xie, in cross-examination, disputed that there was any interruption at this point. Her evidence is that the applicant had paused for a long period and that the presiding member, after waiting during the pause, had begun speaking again. I conclude that the applicant had a sufficient opportunity to seek to persuade the presiding member of the genuineness of his interest in Christianity. The alleged interruptions by the presiding member did not prevent the applicant from giving his evidence.
I also note that on page 21 of the transcript the presiding member is recorded as inviting the applicant to submit additional information by the close of business on the Monday following the Tribunal hearing. If the applicant had wanted to say more about his interest in Christianity he could have used that opportunity. I further note that the applicant made no complaint at the Tribunal hearing that he was prevented by the presiding member from saying all that he wished to say.
I reject the first ground of review.
I also reject ground 2. It is true that during the course of the hearing the presiding member challenged the applicant on the apparent incongruity of him choosing to remain in employment which might require him to deal with Falun Gong practitioners on behalf of the Chinese government and at the same time asserting that he had a moral dilemma in so doing and spoke out against the treatment of Falun Gong practitioners in China once he was in Australia. If anything, that incongruity was brought into sharper relief at the trial of the matter in this Court when the applicant sought to recast his evidence to the Tribunal to re-emphasise his willingness to act against Falun Gong practitioners without hesitation. Having regard to the apparent incongruity, the Tribunal did not accept that the applicant was subject to a moral dilemma that caused him to speak out in Australia and thereby place himself at risk. That adverse credibility finding was open to the Tribunal on the material before it. On the evidence that the applicant now asserts the Tribunal should have had before it, that conclusion would be even firmer.
The applicant seeks to cast the Tribunal decision as demonstrating pre-judgement but in reality it simply demonstrates a state of disbelief. The applicant took advantage of the opportunity afforded him by the presiding member to make a post hearing submission[39]. In that submission he referred to some questions put to him that made him confused and embarrassed. I am satisfied that that submission was taken into account by the Tribunal and that the Tribunal decision does not indicate any bias.
[39] RD 88
I find that the Tribunal decision is free from jurisdictional error. It is therefore and privative clause decision and the application must be dismissed.
I will hear the parties as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 30 April 2008